Defending Against DUI Charges

Charged with Driving under the Influence? Here’s what you need to know to protect your rights, minimize harsh legal consequences, and defend your reputation.

When you’re arrested for driving under the influence, it’s a demoralizing and confusing time. However, you can take steps that may help you keep your driving privileges, get your charges reduced or dismissed, and sometime even avoid a conviction on your record.

Which field sobriety tests are most common in San Diego?

If you're pulled over in San Diego, it is highly likely you will be asked to perform a combination of the following three standardized field sobriety tests:

Horizontal Gaze Nystagmus: Follow an object such as a pen or the tip of a penlight with only your eyes.

One Leg Stand: Stand with one foot off the ground and count to thirty.

Walk and Turn: Take nine heel-to-toe steps along a straight line, turn around, and return along the same line nine additional heel-to-toe steps.

These three tests are the only field sobriety tests that have been scientifically validated to measure alcohol impairment. They are utilized semi-religiously by California Highway Patrol Officers. However, if you’ve been detained by a police officer or county sheriff's deputy, you may be asked to perform other more subjective tests.

These non-standardized field sobriety tests (FST's) include the Alphabet Test, the Rhomberg Test, or the Finger Count Test.

What should I do if the police pull me over and I believe I am over the legal limit?

As a rule of thumb, say and do as little as possible!

When you’re initially stopped, the police officer may not have sufficient legal basis to conduct a DUI investigation. For example, he may have seen you speeding, or swerving but staying within your lane. While either of these observations may be sufficient to stop you, they may not be enough to initiate a driving under the influence investigation without more evidence. When you’re pulled over, your goal is to not provide that “more.”

First, the police officer will ask you for your license and registration, which you are required to provide. He may then ask questions such as “Have you been drinking?” “Are you on anything?” or “Do you mind if I search your vehicle”? He’s not just being chatty—he’s observing you for signs of intoxication, like slurred speech, bloodshot or watery eyes, a staggered gait, or the smell of alcohol on your breath.

Many people are understandably nervous when stopped by the police and spontaneously volunteer incriminating information. It’s never a good idea to volunteer this information or try to “talk your way out it.”

Remember: Say and do as little as possible!

After the initial questions, the officer may ask you to perform a field sobriety test, such as following his pen with your eyes, standing on one leg, or walking and turning, or he may try to give you a breath test. You can refuse these tests! (See below for more details.)

Again, the less you interact with the police officer, the less evidence he can collect. The best approach is to be polite and provide short, concise answers. If the officer asks you incriminating questions, ask if you are under arrest and/or whether you are free to leave. While the officer may continue to detain you, these questions may result in additional constitutional and statutory protections and create additional defenses to use in court later. It may not stop the officer from arresting you, but it could help avoid a conviction.

Is it true that I can refuse to take the breath or blood-alcohol test?

There’s a lot of confusion over which tests you have to take, which should come as no surprise. After all, if it were clear, it wouldn’t be as easy to get you to provide incriminating evidence!

The first thing to know is that there are two types of tests: Field sobriety tests, which happen before you’re arrested, and chemical tests, which happen after. While you’re not legally required to submit to FSTs, you are legally required to submit to chemical tests. However, as a rule of thumb, avoiding either kind of test is generally in your best interest.

Field Sobriety Tests: Field Sobriety Tests, or FSTs, are given in order to help the officer establish probable cause for arrest (see above for details on the tests you’re most likely to encounter in San Diego). You could also be asked to take a breath test, also called the PAS (preliminary alcohol-screening test). You are legally allowed to refuse both. Doing so may not prevent your arrest, but if you think you may be close to the legal limit, refusing could give you critical extra time before you take a chemical test at the station.

Chemical Tests: Even though you’re legally required to take this test, it could be to your advantage to avoid or at least delay taking it. You will be given the choice to take a blood or breath test. Keep in mind that the blood test, in addition to being more accurate, takes an hour or so more, which could help you. You can refuse to take a chemical test, though they may do a forced blood draw anyway. I see this happen more often in San Diego County (less so in Imperial County), although it varies by police agency. Your refusal may buy you some critical extra time to burn off any alcohol that may be in your system.

I was just arrested on suspicion of DUI. What do I need to do next?

When you’re charged with DUI or DWI in California, you’re actually facing two cases: A criminal case for DUI/DWI and an administrative case with the Department of Motor Vehicles (DMV) regarding your driving privileges. You only have 10 days from the date of your arrest to file an appeal with the DMV to challenge your license suspension, so it’s important to act quickly to save your license.

The DMV hearing is set up to make it extremely difficult for the average person to prevail, so it’s usually to your advantage to bring an attorney. This is because during these hearings, the DMV officer who decides your case works off the information in the police report—essentially making him or her the judge and prosecutor in your case. Your attorney can do things like subpoena the arresting officer, subpoena records or provide an expert witness, none of which the DMV officer would do, but which could provide critical evidence toward a ruling in your favor. An attorney may also be able to develop evidence from the arresting officer during the hearing that lays the foundation for your defense in the criminal case.

What is the DMV hearing like?

San Diego County DMV hearingshappen either over the phone or at the Driver Safety Office. Before the hearing, everyone (including your attorney, if you have one, and the arresting officer, if he or she has been subpoenaed) waits for the DMV officer in the lobby. Then the DMV officer then arrives and escorts everyone back to his/her office, where the hearing takes place.

The purpose of the hearing is to answer three questions: (1) Whether the officer had reasonable cause to believe you were driving under the influence, (2) whether you were lawfully arrested, and (3) whether you were driving with blood alcohol content (BAC) of 0.08% or more. If the answer to all three is yes, your license will be suspended for 4 months on a first-time offense.

The hearing is similar to a regular criminal trial in that witnesses can testify and be cross-examined, except that in this case, the “prosecutor” is essentially the judge, as mentioned above. This is because the DMV officer will not only decide your case, but act as opposing counsel during the hearing, asking questions based off the police report or examining the officer if he/she is present. Note that the DMV will not subpoena the officer, so unless your lawyer does, you’ll essentially be fighting against hearsay from the police report.

Visit my section on DMV hearings for more details on what to expect and how to prepare.

What do my charges mean?

DUI/DWI charges in California constitute two separate but related criminal charges. If you’re arrested for driving under the influence, you’ll be charged with both California Vehicle Code Sections 23152(A) and 23152(B).

The A count means you were driving erratically because of alcohol or drugs. For example, if you’re involved in a car accident because you’re driving with drugs or alcohol in your system, you may be convicted of a VC 23152(A) violation.

The VC 23152(B) violation (often called a “per se” violation) does not require any proof that your actual driving ability was impacted in order for you to be convicted. Instead, conviction on the B count is based strictly on your blood alcohol concentration (BAC) being 0.08% or above at the time of driving. Even if you were driving perfectly, you can be convicted of this crime.

Will I be able to keep my license if I was arrested for DUI?

Most of my clients ultimately get their license back after a first-time offense within a relatively short amount of time, but it’s important to act quickly to fight for your driving privileges and successfully defend against a DUI conviction.

Should I hire a private defense attorney if I can get the free public defender?

While many public defenders are very skilled, the advantage of hiring a private defense attorney is the simple fact that he or she doesn’t have to juggle your case with hundreds of others. He or she will thoroughly explore your case, using investigators and expert witnesses when necessary, in order to develop the most effective defense strategy.

Additionally, specifically in the case of DUI/DWIs, since public defenders work across a wide variety of cases, they may not be as familiar with the legal techniques specific to drunk driving cases as a lawyer with DUI experience. Also keep in mind that a public defender would not be able to represent you at your DMV hearing, because you wouldn’t qualify in time.

Finally, a private attorney will also be able to focus on you, explaining what is going on, answering any questions and keeping you up to date throughout the criminal process. The legal system is very complex and confusing, and you’ll find that it’s extremely helpful to have someone who knows the ins and outs and is by your side every step of the way.

How much will it cost to talk to an attorney about my case?

Regardless of which attorney or law firm you ultimately choose, you should be able to have an initial discussion with an attorney about your case for free. In this consultation, the lawyer should listen to the facts of your case, discuss with you what your options are, and be up-front about his or her fees. Look for a lawyer who truly tries to understand your case and your situation, rather than one who uses scare tactics to steer you toward the most expensive option.

Don’t let concerns about cost prevent you from getting the information you need. Here in my law practice, I know that getting the best defense possible is your number-one priority, so I’m always willing to work with you to make that happen. Schedule a free case evaluationto talk to me your case, understand your options and find out about affordable solutions.

I blew over the legal limit. Should I just plead guilty through the public defender?

Never assume that simply pleading guilty is your best option. With strong defense, you can get your charges dismissed, be acquitted, or, where neither of these is feasible, get a favorable plea deal. This may include reduction of the charges to a “wet reckless,” which means you avoid many of the most significant negative consequences of a DUI/DWI conviction.

There are many effective defense strategies for DUI cases, such as challenging the legal basis for the stop, attacking the validity of the field sobriety testing, and disputing breath test results. Keep in mind that 50% of all DUI cases nationally that proceed to trial result in an acquittal, so your chances may be better than you think.

Also keep in mind that location makes a difference when it comes to DUIs in San Diego. Generally, if you’re arrested downtown, you’ll be prosecuted through the City Attorney’s office, whereas if you’re arrested in the South Bay or other areas outside the city of San Diego, the District Attorney’s office will prosecute the case. These have very different ramifications for the types of deals you can secure. An attorney with experience and connections in the local legal community knows what to expect out each situation, and how to negotiate the best possible deal for each particular case.

If I go to trial, do I have a chance?

You may think that you’re looking at certain conviction, but keep in mind: 50% of all DUI cases nationally that proceed to trial result in an acquittal.

A good DUI attorney will use investigators and expert witnesses to expose potential weaknesses in the prosecution’s case and identify effective defense strategies, such as:

Challenging the Legal Basis for the Stop: A police officer can’t make an arbitrary decision to pull you over based on profiling or a mere hunch or suspicion. For the initial stop to be legal, the officer typically must have seen you commit a driving offense (i.e., run a stop sign, speed or drive without lights at night) or do something that creates a “reasonable suspicion” that a crime is being committed.

If the police officer did not have a legal basis for the stop, your attorney may be able to file a motion to suppress all evidence obtained during the stop, including field sobriety and breath test results; officer observations during the stop; or evidence obtained on your person or in your vehicle, such as drugs or open alcohol containers.

Successful use of this strategy can leave the district attorney or city attorney with no evidence, resulting in dismissal of the DUI charges.

Attacking the Validity of Field Sobriety Testing: When a police officer stops you for DUI, he will frequently ask you to perform certain physical tests. These tests are highly unreliable, so their validity is open to attack. While you’re probably familiar with many of these tests from TV, only three FSTs have been approved to have any measure of reliability in predicting drunk driving—and only when performed perfectly by well-trained police officers. Many officers lack this training, make errors in administering the tests, or do not accurately explain or demonstrate the FSTs as required.

These three—the Walk and Turn, One Leg Stand and Horizontal Gaze Nystagmus—have been approved and standardized by the National Highway Traffic Safety Administration. However, even these tests erroneously detect someone as impaired 25 to 35% of the time. I can successfully argue that these are subjective, not objective, scientific tests that fail to accurately detect impairment, which can and often does swing the jury in your favor in these types of trials.

Disputing Breath Tests Results: After you’re pulled over, the police officer may ask you to breathe into a portable breath testing device. Many presume that the results of such a breath test device are scientifically accurate and reliable, but these test results can be challenged on a number of grounds:

Title 17 Defects: Device is not properly calibrated in accordance with Title 17 of the California Code of Regulations

Inadequate Waiting Period: Failure of police to observe the suspect the required 15 minute waiting period prior to administering the breath test

Medical Defense: Diabetes or other medical issues like high temperature due to illness

Rising Blood Alcohol Defense: Driver’s blood alcohol level is below legal limit when driving but rose above the 0.08% BAC threshold during the contact with police and when tested

There are many effective defense strategies in DUI cases that can keep your record free and clear. An attorney with DUI experience and deep familiarity with the local legal community will be able to help you determine whether this is a viable option for your case.

What is a “wet reckless” in California? Is it a misdemeanor?

Your goal is always to get your charges dismissed or be acquitted. When these options aren’t feasible, however, a reduction of charges, such as to a “wet reckless,” can be the best option. In California, a “wet reckless” simply means a driving offense related to alcohol consumption. The charge is essentially a step down from a DUI and is one that your attorney would negotiate in lieu of going to trial.

In San Diego, a wet reckless typically carries half the consequences of a DUI conviction. For example, a conviction on a first-time DUI here usually carries 5 years of summary probation, while a wet reckless is only 3. Additionally, the fines and community service associated with a wet reckless are generally halved as well. A wet reckless is a misdemeanor offense and can be expunged (see below).

Keep in mind that the prosecution will not offer a wet reckless deal in every case. However, an experienced DUI attorney who knows the San Diego legal system may be able to negotiate this settlement on your behalf.

Can a DUI be expunged in California?

Good news for those who’ve made a mistake and ended up with a DUI or DWI conviction: They can be expunged, as long as they meet certain requirements, including that (1) you comply with all the terms of your probation (e.g., paying fines, performing community service or getting counseling) and (2) you haven’t been convicted of another offense while on probation.

You can request expungement once your probation has been completed. Your lawyer may also be able to secure early termination of your probation. Even if you did not successfully complete all the terms of your probation, your attorney can request a special hearing to ask that you be considered for expungement.

Record expungementmeans that you’re released from “all penalties and disabilities” arising from your conviction. Most importantly, this means that when you’re applying for a job, you can say you don’t have a criminal record, because the conviction has technically been dismissed.

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